This paper discusses current child support formulae and policy in the context
of the history of their development. Major flaws in current formulae and their
use are apparent. Moreover, the flaws are so serious that existing child support
guidelines do not meet federal requirements upon which eligibility for funding
of state programs is based. An approach for developing child support guidelines
is provided that will meet all federal requirements and should lead to dramatic
improvement in the design and use of child support formulae.

Efforts to produce mathematical formulae to assist in child support decisions
have gone on for decades in the United States. Historically, mathematics as an
integrated part of child support law has been more prevalent in other countries.
This is especially true for child support law in socialist countries where award
decisions are made in relation to an array of welfare state benefits. In the
United States, their formal statutory use as a presumptive calculator of awards
prior to 1990 was limited primarily to welfare cases. As in other countries,
states and the federal government wanted a highly consistent formalized way of
calculating an appropriate amount to be recouped from non-custodial parents for
assistance provided to custodial parents and children by government programs.

In a 1981 case that sparked national interest, the Oregon Supreme Court went
to lengths to explain established child support doctrine(1) (Smith, see footnote). At issue was
whether the child support formula used in Oregon welfare cases should be used in
non-welfare cases. The Oregon Supreme Court found that the welfare formula did
not correspond to child support law written for non-welfare cases and it was
therefore inappropriate to apply it outside the limits of the welfare system.

Formulae used in the welfare program are designed to maximize reimbursement
of public money given as entitlements. Simply maximizing the amount of child
support awarded is not an appropriate goal for all situations. In non-welfare
cases, when the parents are able to support themselves and their children on
their own, the situation was not as simple as getting as much as you can. Awards
were based on the "actual and necessary needs of children" and the
ability of each parent to pay were considered among other things. The Court went
to some effort in Smith to explain what was meant by children's
"needs".

Although the Oregon Supreme Court did not require the use of an alternative
mathematical formula in non-welfare cases, they cited work on a child support
model presented by Maurice R. Franks as coming closer to established non-welfare
child support law(2). Franks' child support
model, and those like it, have often been called Cost Sharing models because
legal experts often referred to parental spending on children using the term
"cost"(3). Those who read Franks' paper
will be impressed with the fullness of his legal citations in support of his
model. This is not to say however, that child support decision modeling had made
sufficient progress to substantially replace judicial discretion in the
application of child support law.

Franks' accepted the traditional approach of determining costs for raising
children from family spending history, and cross credited expenses in both
households to account for shared custody and visitation / parenting time.
Franks' model is significantly different from the Income-Shares model developed
by Robert Williams that is so widely used today. In contrast to Franks' model,
the Incomes Share model is not based on real household expenses on children, and
arbitrarily under-accounts for shared parenting time.

One similarity shared by both approaches is the notion that the parent's
share of the "child support obligation" is taken to be in proportion
to their share of the parents' combined income. This produces a major failing in
both models. Neither considers either parent's actual "ability to
pay", which is addressed below. Neither provides a solution to the problem
of adjusting the standard of living in the custodial parent household. Franks'
doesn't include it and Williams simply raises the numeric tables arbitrarily
producing results so high that they often overshoot "child support" to
include alimony(4).

Prior to the federal requirement for development of state-wide child support
guidelines in the Child Support Enforcement Amendments of 1984,
"guidelines" had already come into use in state courts. Many child
support guidelines had been developed by judges and local bar associations. Some
were simply used informally by judges and attorneys while others were used as
county-wide guidelines. Robert Williams' 1987 report provides a small sample of
such guidelines without probing into the details of their correspondence with
established law or the subtleties of their use(5).

It is important to note that judicious use of a simple formula and / or
numeric table as a "guideline" does not contradict the decision of the
Oregon Supreme Court cited above. There is a fundamental and significant
difference between using such tools as a guideline to assist in decision making
and the presumptive use of a child support formula.

One argument given by advocates of presumptive child support formulae was
that award levels appeared to be non-uniform. Two divorced fathers could be
living on the same street and going to the same job with the same pay each day,
and pay different amounts of child support. The problem with this complaint is
that it suggests that the two fathers should be paying the same amount
regardless of other mitigating factors. In other words, it presumes a simple
percent-of-income formula rather than applying established child support law.
But such an approach does not relate the child support award amount to the needs
of children and the relative ability to pay. Its relationship to family
circumstances is random, and therefore it cannot meet the federal requirement
that the application of a guideline result in a "just and appropriate award
in each case". It's also reasonably obvious that without a rational
relationship between an award and family circumstances the method would fail any
honest constitutional test for "due process" and "equal
protection".

After the federal reforms took effect, approximately one third of the states
are actually using a simple Percentage-of-Income formula. The method is so
obviously over-simplified and unrelated to sincere policy modeling efforts
however that it is often left out of general discussion. It has its origin in
old Soviet Russian law and there is no reasonable argument for using it in the
United States. A slightly reformed version still exists as Article 81 of The
Russian Family Code, adopted in 1995. Its use was promoted in the United States
by Irwin Garfinkel as part of a suite of Soviet Russian policy that has become
known to us as "The Wisconsin Model". The Wisconsin Model then became
a center-piece for the national child support and welfare reform movement.

Another item lobbied for by women's groups in the 1980's that ultimately
affected child support guideline development was a push by women's groups to
increase alimony. Failing sufficient political support for increased alimony,
attention turned to increasing the amount paid under the rubric of "child
support". According to Williams' 1987 report, the intent of his
recommendations was to increase "child support" awards dramatically
above what they had been according to established state child support laws. The
detailed discussion and recommendations by women's advocates on increasing
alimony is the only logical forerunner to Williams' child support
recommendations that has to date been found.

In discussion on child support reforms, advocates of increasing support have
typically pointed to differences in income between men and women as the basis
for the need to increase child support. This argument is direct in its appeal to
include alimony or spousal support in child support awards.

The common claim of inadequacy of child support awards (referred to as the
"adequacy gap" in child support awards) typically centered on the fact
that the average of child support awards was not sufficient to support both the
custodial parent and child(ren), or at the very least that it wasn't sufficient
to cover 100% of child(ren)'s needs - the latter ignoring the obligations of
custodial parents to contribute and substantial direct contributions by fathers
during visitation for example.

The general belief among legal experts is that child support should never be
used to equalize income between the two households. Such a policy is understood
to result intentionally in the inclusion of spousal support in child support
awards. Spousal support should not be awarded as part of a child support award
because spousal support can be awarded separately when appropriate and more
fundamentally, spousal support is not child support.

One of the problems with Percent-of-Income, Income-Shares, and early Cost
Sharing models is their simple use of income for assigning, or dividing the
support obligation into a proportionate share for each parent. None of these
approaches addresses the parents' ability to pay support for their children or
the consequences to the children or either parent when meeting the obligation of
support.

Consider a custodial mother who makes $8,000 per year take home pay and a
non-custodial father who takes home $16,000 per year. For the purpose of this
illustration, please assume that exactly $8,000 per year is required for basic
support for one adult living alone. An Income-Shares type formula would
distribute the obligation in proportion to each parent's income. The custodial
mother in this example, who earns just enough to care for herself, would have an
obligation to provide one third of the additional money needed for support of
their children. If that amount is say, $3,000 per year, then she is left with
only $7,000 per year for her own support, which is not adequate. This would
likely lead to inadequate support of their children.

A simple but much more rational formula for "ability to pay" was
proposed by Melson (Judge who developed the late-80s Delaware model), Cassetty
(well known contributor to discussions on child support calculations) and
others. Their basic model of "ability to pay" is net income minus an
adult "self-support reserve". The self-support reserve is deducted
immediately and becomes untouchable for both parents. The result in the case
above, is that the mother's total income would be hers - the amount she needs to
support herself - plus the additional amount needed in her household for care of
the children. That is exactly the result that is needed.

The effect of income disparity, when one parent is able to pay significantly
more than the other, is most obvious when one of the incomes is near or below
subsistence level. A better specification of "ability to pay" would
pass all reasonable logical tests when applied to all cases. It has the effect
of shifting income as needed in a non-arbitrary way. It would thus allow
replacement of the arbitrarily high numeric tables currently in use with tables
that are realistically related to the circumstances of children and parents. The
best vision is that of allowing consideration of a wider range of mitigating
factors in determining ability to pay. Doing so would provide one part of the
fine-tuning needed to meet the federal requirement for a "just and
appropriate award in each case".

Franks' model is more advanced than Williams' in dealing with shared
parenting and visitation. Franks presented a method known as "cross
crediting". There has since been discussion on whether the cross crediting
formula should be applied strictly according to the amount of time children
spend in each household when one or both parents' income is low. This question
is resolvable and the cross crediting concept provides a very solid theoretical
basis for dealing with the sharing of direct expenditures by parents.

Williams' simply filters out all credits for visitation and shared parenting
arrangements, and assume zero time-share. The tenacity with which he has fought
to eliminate visitation credits is one of the reasons that he, rather than just
his work, has often been characterized as extremely biased against non-custodial
parents. Even when state representatives and state courts protest, opting for at
least some token reduction in support as visitation credit, Mr. Williams has
fought to minimize it. With the elimination of proper visitation credits, the
income of many non-custodial parents can be reduced beyond the point where they
are able to afford normal visitation. The objective evidence is telling us that
much of the reason for lack of regular visitation is because the non-custodial
parent cannot afford to support the children during visitation. This problem
increases dramatically without proper credit for visitation in the formulation
of child support awards.

Under the present child support award system, those who can still afford
visitation are usually not convinced that they should be forced to pay many
expenses twice; once directly during visits and again in the form of a child
support payment calculated as if the children never visit. After the
introduction of Williams' recommendations no state is cross-crediting.

As an example of the effect of improper cost crediting and sharing (that
occurs in Oklahoma and elsewhere because of existing policy and law); if
expenditure on a child is $3000 per year and the parents have equal net income
and a 50/50 joint parenting arrangement (we assume in this example equal direct
financial obligations), the non-primary custodial parent would pay $1500 in
child support to the primary primary parent. The paying parent would still have
$1500 in costs for the child in their home for a total expenditure of $3000 for
the child. In contrast the primary custodial parent would spend $1500 but that
full amount would be reimbursed by $1500 in child support leaving a total
financial contribution by the primary parent of nothing.

A long-standing problem with all models has been the lack of a theoretical
solution to the question of adjusting the standard of living in the custodial
parent household. This issue arises because traditional child support law
intended to provide some reasonable protection for children against the decrease
in living standard that often accompanies divorce when the mother does not
remarry1. Franks doesn't deal with the question.
Cassety made a very direct and pointed issue of the problem but did not solve
it. In developing the late-80s version of the Delaware formula, Judge Melson
went to a great deal of effort to create a basis for a reasonable judgment. He
decided to add 5% of remaining income after deducting the self-support reserve
and a basic amount of child support. The adjustment was later changed by the
state of Delaware to more closely match the arbitrary increases in awards
recommended by Williams. A theoretical solution to the standard of living
adjustment problem was not presented until 1994(6).

Child support guidelines in use in the U.S. are based primarily on the
opinions and assumptions made by two people, Robert Williams and Irwin
Garfinkel. Approximately two-thirds of all states use the Income Shares approach
that has been questioned continuously since the publication of Robert Williams'
report in 1987.

According to the Child Support Enforcement Amendments of 1984, Robert
Williams technical report7 was supposed to "provide technical
assistance to the states" in developing their child support guidelines. It
was not under that legislation, and still is not today, an acceptable role for
the federal government to decide each state's policy for making a child support
award. Yet, each of us who have carefully studied Robert Williams' report
recognizes that something is amiss. Robert Williams' recommendations are not
based on the established state laws of the time. His methods are not flexible
enough to adapt to policy choices states are entitled to make. Underlying his
technical recommendations are Robert Williams' policy choices. (Something he
admitted in a deposition in a federal case.) And those choices are not clearly
specified so as to facilitate open discussion and debate.

The explicit argument given in favor of Williams' model rests on rather crude
statistical methods which Robert Williams typically refers to as "economic
studies". There is no appropriate economic data at the heart of these
"studies". The data that Williams, Betson, and a few others have
related to their "studies" is so off target that there is very little
reason to refer to their studies as being "statistical".

The data used in these "estimates" is the national data on family
expenditure that comes from the Consumer Expenditure Survey. Nearly all of the
data is on what families spend as opposed to what is spent on individual family
members. In other words, it does not provide a statistical view of what is spent
on children and adults in households but what is spent in total on different
items of expenditure. One can get a reasonable view of what households spend on
housing and transportation for example. But no amount of witchcraft can
transform that cost into how much is attributable to children, or differences
due to cost of living variation amongst states.

The data used has very little effect on the numbers produced in the so-called
"economic studies". The numbers are primarily the result of the
arbitrary choices the modelers make in selecting an estimating method. The
modelers choose the portion of family income "distributed" to adults
and to children. That information does not exist in national data on family
spending and there is no way to divine it from that source. Here is what two
competent researchers said about such "studies".

. . . the presumption that underlies the focus of much of the empirical
research and policy debate on income distribution [within households] seems born
of ignorance and is supported by neither theory nor fact.(7)

In all fairness, some of those studies were carried out with some degree of
competence and good intent. Although failing to provide much solid useful
information, the most honest directly pointed out the weaknesses of the methods
and uncertainty of results and provided the most open expos� of the
arbitrary choices made. Even so, not a single of the so-called "cost of
raising children studies" was done for the purpose of assisting in the
development of child support law. One researcher, working directly on the
problem of developing child support guidelines said the following about such
studies.

&hellip; it is possible that achieving confidence in the data base
through use of a simple methodology which explicitly relies on "user
opinion" will be more effective in moving practices more uniformly toward a
fair standard than does reliance on opaque and highly derivative expert
interpretations of existing but fundamentally off-target primary economic
data.(8)

It should be especially noted here that David Betson's study(9), although done to fulfill requirements in the
Family Support Act, is no exception. No new techniques were developed for
divining information more relevant to a child support award decision.Betson's task was simply to update old information using information
from a newer Consumer Expenditure Survey collected between 1980-1986. His report
contains a wide range of "cost of raising children estimates" and no
solid scientific basis for preferring one over another. Betson's display of such
a wide range of possible estimates from the same data should have been seen as
yet another of the several very loud and obvious signals indicating that
something is amiss.

This point is so important that it's worth a simple example to be sure
non-technical readers understand what is meant by all this. Here's a simple
example. Let's say that on average families with two adults and one child and an
after tax disposable income of $35,000 per year actually spend $30,000 on
"family spending" that's used in a "cost of raising children
estimate". From that information you are asked to estimate how much of that
$30,000 is spent on the child. One estimate starts by making the arbitrary
choice that one third of all family spending is for that child. Dividing $30,000
by 3 gives $10,000.

Following the logic of Betson / Williams we would say that the estimate of
$10,000 in spending on children came from the data - $30,000. But the data had
little to do with the outcome. If we had wanted $7,500 as the result instead of
$10,000, we simply would have selected the estimating method "divide by
4" instead of dividing by 3. The answer is manipulated by the method that
is used for estimating what is spent on children. If we apply the same
"divide by 3 method" to total family expenditure of $60,000 per year
we get $20,000 per year. It's as simple as that. By manipulating the method the
analyst can get any answers they choose to get.

Nothing in the data indicates which is the right or even the best choice.
There is, as a matter of scientific fact, no method sophisticated enough to
derive information from data that doesn't contain the information you're looking
for. Whether in obscure or obvious form the information sought must exist in
order for it to be found. The holy grail, so to speak, how much families spend
on children is not information that is found in the data from the Consumer
Expenditure Survey and it cannot be derived from that source. It definitely
can't and even if it could be derived from some source, that still wouldn't
answer the question that needs to be answered - how much should each child
support award be?

Williams has defended his use of child cost estimates primarily by pointing
out that someone else did them. From the beginning, he's based his model on the
work of Thomas Espenshade. ("Updated" by Betson in reference to a more
recent Consumer Expenditure Survey.) Espenshade's work did not emerge within the
context of mainstream scientific process and was only a recent addition to
commentary in the form of a book published by the Urban Institute Press(10). Espenshade's estimates of the cost of raising
children had not and still have not been through any validation process or even
substantial argumentation in the normal course of formal scientific discussions.

Moreover, Espenshade's "cost" estimates were in no way related to
the question of making child support awards. Political use has been made of the
fact that Espenshade's estimates are not related to the question. For several
years, many analysts have been pointing out that intact family spending has no
relationship to post-divorce circumstances. Use of such data can only lead to
awards which are randomly related to post-divorce family circumstances and
children's needs. Espenshade had not made estimates of single parent spending
because his study did not concern the question of making a child support award.

Ultimately, Hewitt's suggestion is a very reasonable one. Adjustments to the
numeric data are best provided by "user opinion" from those who can
directly observe the results of the use of the guidelines and judge them
according to their appropriateness in dealing with individual situations in the
light of the principles of child support law. This is exactly the way many child
support guidelines were evolving before the federal government stepped in and
began manipulating the process. Williams' model, on the other hand, is estimated
to produce awards on average 250-300% higher than those that were being awarded
according to established state laws. That's obviously a case of someone being
very generous with other people's money.

One report by the OCSE actually does point to a problem in review of
Williams' based guidelines. The following specific comments can be found in the
executive summary of volume II of the report(11).

Surprisingly, few States reviewed their core guideline model or
methodology. Rather, guideline reviews focused on issues relating to income,
adjustments to income, adjustments to the guideline amount, and deviations from
the guideline amount.

It is surprising that the OCSE reporters find this result surprising. Let's
take a step by step approach. The policy discussion has been focused on junk
"economic studies" which in themselves mean nothing. Even if proper
data existed so that a worthwhile statistical study could be carried out, there
would still be issues to confront on the structure and purpose of those studies.

Even if we did have an appropriate data set there would still be a
fundamental problem. Economic studies, even good ones, can at the very best
provide only one element in putting together a final guideline and using it
properly. Even if we had the perfect data set, there is no statistical formula
for extracting child support policy from spending data. That is, the state must
first decide what its child support policy will be. Yet, the distraction caused
by the focus on so-called "economic studies" has prevented reasonable
and much needed discussion about child support policy.

Robert Williams' involvement in child support issues coincides with the
formation of his company, Policy Studies Inc. in 1984.We find
no record of his involvement in family questions, no history of academic
achievement in the field or even evidence that he's qualified to deal with
complicated policy / design issues. He came from nowhere in the mid-1980s as the
Office of Child Support Enforcement's choice to provide technical assistance to
the states in developing child support guidelines and was able to provide
nothing except extreme policy views. Without having any legal authority, or a
logical or scientific basis for his recommendations, he has to a very great
extent dictated child support policy in all states ever since. Most disturbing
of all is that his business operations include a collection company that takes a
percentage of the amount of child support paid. Mr. Williams therefore has a
direct financial interest in increasing award amounts.

Rather than forcing compliance with a poorly designed formula by mandating
acceptance of its flaws, the honest course is to expose the mechanics constantly
to every legal test and by that approach force improvement of a formula and its
use.

There is no example of a state statute that defines child support
independently of the calculations used to determine a standard award. (Confirmed
by OCSE in 1994.) This is a very serious situation. There is absolutely no way
that states can be in compliance with the requirements of federal law without
having a clear statutory definition of child support(12).

The law requires that awards determined by the application of child support
guidelines be rebuttable. The federal law specifies: "A written finding or
specific finding on the record that the application of the guidelines would be
unjust or inappropriate in a particular case as determined under criteria
established by the State, shall be sufficient to rebut the presumption in that
case." It further specifies that guidelines "shall be reviewed at
least once every 4 years to ensure that their application results in the
determination of appropriate child support award amounts".

It is impossible to meet either of these requirements without having a
legally established definition. A specific, meaningful, statutory definition is
the only mechanism that can provide litigants in every case with criteria to
determine whether the presumptive award is just and appropriate. It is also
impossible to determine whether the application of guidelines generally result
in appropriate award amounts without having a definition as a basis for the
determination.

The arbitrary nature of current child support policy has its roots in the
tendency of federally designated analysts to look for answers in ways in which
answers cannot be found. Above, Williams' approach rests on data that does not
contain the information he seeks. We've noticed a similar problem in the more
general discussion on what a "just and appropriate" child support
award might be. We've seen this issue shift to the general question of
"fairness" and then "fairness" defined as an unresolvable
conflict. Specifically, we've repeatedly heard "fairness" discussed as
the condition that everyone gets everything they want. Given that the
fundamental purpose of the court in many child support cases is to settle
disagreement, it's quite clear that this view will not yield a general solution.

We have not heard of any credible argument, nor do we ever expect to, that
fairness does not first require defining what is being done. No judgment can be
made about what is fair unless there is a specific understanding of what a child
support award is supposed to be. We can see in state laws that existed prior to
the federal government's encouragement to use presumptive formulae that this
principle of legal construction was well understood. It is also apparent that
the law must also make a relational statement about the obligations of the
parents and provide the courts with the proper authority to consider all
relevant factors before making a final judgment.

In a 1993 conference paper, a step-by-step list was provided for development
of a well integrated child support policy. "Well integrated" policy
begins with a child support policy put in place by a state legislature. Child
support guidelines are then developed to correspond to the state's legally
established policy. The overall process is one in which guideline engineering is
integrated with the well established traditional process of legal
construction(13).

A reasonably broad survey of state child support statutes was made. Of
necessity, the laws surveyed where those which were in place prior to the date
the federal mandate for use of child support formulae took effect. What was
needed was the essentials of well established definitions, relevant doctrine,
and an understanding of the legally established considerations in child support
award decision making. The survey included review of some important case law.

The model child support statute given below is based directly on the Oregon
child support statutes and contains much of the original language. It is typical
of many state child support statutes that were in place prior to 1990. The work
was facilitated by the Smith case1. This brought a great
deal of detailed understanding and clarity to the established law that would not
have existed simply from reading the statute and reviewing a few less
comprehensive decisions. The question in Smith was in fact the
appropriate use of child support formulae, making it the perfect case study,
especially since the judges chose the occasion to provide their most extensive
discussion on child support law. The inclusion of the presumptive use of a child
support guideline (rebuttable) explicitly brings the statute into perfect
compliance with federal requirements.

In order to make the transformation from traditional legal principles to the
process of formulating a mathematical model, a set of concrete statements was
extracted and organized in a way that is convenient for a logistician /
mathematician. Writing as logistician, the basic elements of any valid child
support law / formula are described below as the "fundamental laws of child
support".

3 All relevant circumstantial information may affect the amount of the award.

These "fundamental laws" are typically found in traditional child
support statutes. The "first law" seems almost trivial, but it is
essential to build upon a basic statement of purpose. Without such a basic
defining statement, all else is arbitrary. The "second law" was
originally found in a separate statute(14).
Logically, once one decides what child support is, one must also decide who is
responsible for paying it. We've not found any reason to doubt the wisdom of
those commentators who insist that "equal duty" is Constitutionally
mandated(15).

The necessity of the "third law" can easily be explained from
consideration of the second. Although both parents have an "equal
duty" to support their children, it has never been held that each parent
must pay an equal amount toward support. How much each parent should contribute
is determined by the careful consideration of the circumstances of each parent.
This third law determines each parent's ability to pay, what the children have
already or need to be supplied in both households for their physical support,
amongst other things. There is no way to produce results conforming to the
"second law" without application of the "third law". In the
end, the best decision can only come from reasonable consideration of the
circumstances of each parent and the needs of their children(16).

It is not the purpose of this article to document a full detailed expansion
of the modern mathematics of child support. In the traditional process,
interpretation and detailed expansion of the rule of law was, of practical
necessity, left to the courts. By providing a statute that resembles traditional
state law, the legislature offers the state courts the benefit of the decades of
legal development that preceded the Family Support Act of 1988. As shown by the
model statute below, it is a rather simple matter to modify the statute to
comply with current federal requirements.

But the discussion above does carry with it the intent to argue that this is
the only proper way to construct child support law. The three "fundamental
laws" are essential to any valid child support statute and to any valid
child support formula as well. It is our opinion that Constitutionally
acceptable child support law cannot be constructed without the central inclusion
of the three "fundamental laws" given above. State child support
policy must consist of these three "fundamental laws".

Proper implementation of federal law, requiring procedures that result in a
"just and appropriate award in each case" as well as requiring
periodic review to assure that the use of child support guidelines results in a
"just and appropriate award in each case", should lead states to
improve their guidelines. Each case provides an opportunity to learn about the
weaknesses in the design of a child support guideline. At the very least, each
required periodic review offers another opportunity to improve the design of the
guidelines in light of what has been learned from experience.

If this procedure is followed, it is reasonable to expect that the need for
deviation from guidelines will be reduced over time so long as the need for
deviation is reviewed and that information is used to improve guideline design.
Currently the incidence of deviations is reduced simply by ignoring flaws in the
guidelines and inappropriate results. Instead, it is recommended that case
experience be used to direct pressure toward improving the quality of child
support guidelines and thus reduce the need for deviation by improving the
quality of the results they produce.

Above, it has been pointed out that there is at present no national data base
which provides sufficient information on parental expenditures on children. Yet,
we know that expected expenditure on children is one of the key questions in
making an award. Traditionally, the courts would attempt to determine what had
historically spent and in effect attempt to predict spending on children in the
future. This process of course, led courts and bar association groups to develop
tables from which one could quickly and consistently determine a
"reasonable amount" in order to achieve better results more
efficiently in dealing with this specific part of the child support award
question.

In the section above which explains one of the major faults of the popular
Williams' approach, William Hewitt, a researcher in Washington State, is quoted
as pointing out that "user opinion" is likely to provide the best
improvements to the numeric table. It seems apparent that those who are
experienced in the direct application of guidelines can best contribute to their
improvement. Nonetheless, there are important conclusions that basic research
can provide.

Spending on children in split households has a random relationship to the
combined income of the parents. The income of both parents can be appropriately
considered in the award decision only if that consideration is consistent with
the fact that the parents do not live together and therefore do not use their
income jointly. The only approach that provides an appropriate outcome begins
with consideration of the financial circumstances in the custodial parent home.
The full effect of non-custodial income can properly be included in the detailed
mathematical model, but not by a numeric table with values related to combined
parental income.

Regardless of what a freshman economics textbook might say, "ability to
pay" is not equal to income. Traditional statutes and case law provided
that one of the important determining factors in the award of child support is
the parents' relative ability to pay. Courts also concluded, on basic legal
grounds, that so much could not be taken from the person ordered to pay support
that they are unable to support themselves. Mathematical study has shown that
there is no consistency of logic unless this rule is also applied to the income
of the custodial parent. It is also apparent from this study that children are
best protected against inadequate award levels when parental income is reduced
by adult needs and the remainder is taken as "ability to pay". This
view of "ability to pay" has been investigated by others as well, and
was applied in the Melson formula used in several States.

Unusual case circumstances (those which deviate from the circumstances
presumed in developing the guideline) cannot be adequately considered unless the
numeric table is categorically divided (food, clothing, shelter, transportation,
entertainment, etc.) The State of Vermont tried categorical division with a
presumptive child support formula. The experiment was tried early this decade
when support for forcing an overly simple statistical consistency in awards was
particularly high. The State quickly abandoned this feature when it produced a
much higher number of deviations. This experience illustrated the poor quality
of the design of their formula, which happened to have been a version of
Williams' Income-Shares model. As stated above, the acceptable approach is to
allow such problems to force improvement in the design of the guidelines.

It is apparent from the OCSE report mentioned above and from our own
discussions with people around the country that most states have not carried out
any meaningful structured review process. Most states are simply repeating the
political process they began with. Supplementary to that, Robert Willliams has
been making appearances to reassert his personal support for his own policy
preferences.

One thing that would improve the review process tremendously would be to
actually have a child support policy. In Fitzgerald, cited above, the
Court characterizes the litigants view in trying to exercise the right of
rebuttal to the presumption that the guideline amount is correct. Without an
explicit and clear conceptual basis for the award a litigant attempting to rebut
the presumptive amount on the basis that it is unjust or inappropriate must do
so without knowing what just and appropriate means. (Obviously impossible, and
thus unconstitutional.)

The same situation obviously exists in regard to state review of child
support guidelines. Federal law requires reviews be conducted to assure that
application of a guideline results in a just and appropriate award in each case.
Without a credible child support statute, reviewers are in the same position as
litigants (and judges). They have no basis for judgment. With a proper statute,
including proper authorization for the courts to apply it (see model statute)
the courts themselves will review the guidelines in the best and most
comprehensive way - the way the Constitution intends.

Child support committee members and others interested in child support need
to clear themselves of the distraction of fundamentally invalid "economic
studies" and discuss the definitions and logic involved in making an award.
State legislatures need to do their job of deciding what the state's policy will
be.

Whenever the court grants a decree of marital annulment,
dissolution or separation, it has power further to decree as follows;

For the recovery from the party not allowed the care and custody of such
children, or from either party or both parties if joint custody is decreed, such
amount of money, in gross or in installments, or both, as constitutes just and
proper contribution toward the support and welfare of such children. The court
may at any time require an accounting from the custodial parent with reference
to the use of the money received as child support. The court is not required to
order support for any minor child who has become self-supporting, emancipated or
married, or who has ceased to attend school after becoming 18 years of age. In
determining the amount of the child support, the court shall consider the
economic needs of the children and determine payment by the parents in
proportion to their respective ability to pay on the basis that each parent has
an equal duty to provide financial support for their children. There shall be in
any proceeding for determination of the child support award, a presumption that
the [child support schedule] provides the proper award. Each presumptive award
is subject to review at the request of either party. The court shall determine
whether the presumptive award is just and appropriate under the terms of this
statute and others in force. In all cases, the court shall provide a written
statement listing the relevant considerations and pertinent facts related to
its' decision. In making its' determination, the court shall consider, but not
limit itself to, the following factors:

(A) The financial resources of both parents;

(B) The ability of each parent to support themselves;

(C) The cost of day-care if the custodial parent works outside the home;

(D) The expenses attributable to the physical, emotional and educational
needs of the child;

(E) The tax consequences to both parties resulting from spousal support
awarded, if any, and the child support award, and determination of which parent
will claim the child as a dependent;

(F) Expenses in the exercise of visitation;

(G) The existence of children of other relationships; and

(H) Expenses arising from other factors as the court may determine relevant
in a particular case.

Federal reform of the child support system has been the most significant part
of welfare reform in the US over the past 15 years. The purpose of the reforms
was to 1.) federalize the child support system, 2.) extend the welfare system's
formulae and enforcement methods to non-welfare cases, and 3.) adapt to defined
and as yet undefined international standards. The acceptance of reforms has been
aided considerably by support from groups representing segments of the
population which have profited directly from the initial increases in child
support awards, primarily divorced, middle class mothers.

In 1973, The Hague Convention on Recognition and Enforcement established an
international view of cooperation in the enforcement of child support orders. In
1974, apparently lacking any sense of coincidence, Senator Russell Long
"perceived a connection" between "fathers who abandon their
children" and a growth in AFDC spending. This led to the original federal
child support and paternity legislation enacted in January 1975(17). Among other things, child support enforcement
services were required for families receiving assistance under AFDC, FC, and
Medicaid programs.(18)

The welfare community did not favor the legislation and only a few Senators
spoke in favor of it. When it passed, it did so at least in part because it was
tied to more popular social service amendments(19). When passing the legislation, President Ford
contended that the provisions went "too far by injecting the Federal
Government into domestic relations." He complained of "serious privacy
and administrative issues," and promised to propose legislation to correct
defects(20). During the Reagan years, our new
addition to the federal bureaucracy, the Office of Child Support Enforcement,
embarked on a national propaganda campaign. By the time the Child Support
Enforcement Amendments were proposed in 1984, which began a dramatic expansion
in the office's size, budget, and powers, most politicians were talking as if
"deadbeat dads" were the nation's most serious problem(21).

At the Hague Conference on Private International Law in 1995(22), a U.S. delegate promised the international
community that federal legislation would "provide for services at the
federal level through a Central Authority to ensure an efficient, workable and
uniformly implemented system in cooperation with the states and with the foreign
countries which are willing to take part. In addition, the federal government is
considering the possibility of the United States becoming a party to one or more
of the existing conventions."

The delegate obviously went too far. The federal government has taken new
steps to modify cooperative agreements among the states and between the states
and foreign countries.(23) In general however,
the situation is the same as it was before. The Constitution prevents the United
States government from moving directly into territory reserved to the states and
to the people by the ninth and tenth Amendments. The overall effect of federal
tampering has been to make the system more bureaucratic, frustrating and even
angering tens of millions of parents. In the end, it wasn't even important.
There's simply not a significant difference between the law of a foreign country
saying "all states within the United States"(24) instead of "the United States".
Those feeling that it's too burdensome for foreign countries to have fifty
addresses instead of one can think about a central office of communication
rather than a "Central Authority". Additional government power was
simply not needed to make cooperative efforts workable and efficient.

Reform efforts within the US have been driven by the same bias found in
international forums, more so than just in the preference for bureaucratic,
centrally controlled governmental systems. At a Hague conference on
international enforcement of family / child support, one foreign delegate
reported that the need for enforcement was clear due to the efforts of debtors
to "do anything to avoid their responsibilities".(25) Promotion of reforms in the United States took
that idea as its central theme, even though the United States has historically
had one of if not the highest compliance with child support orders in the
world.(26)

The Bureau of the Census in the US reported on child support payments in the
spring of 1995.(27) According to that report,
the so-called "deadbeat dads" are few and far between in the
population with valid child support orders.(28)
Comments on child support compliance often focus on the estimate that only about
66% of the child support that has been awarded is paid. This does not consider
the fact that more than 14% of the amount under study had been recently awarded
and was not yet due. Considering custodial parent reporting bias and adjusting
for awards not yet due brings us closer in line with the information provided by
Braver et al.(29) as well as information
collected by commissioners in the states. Approximately 80% of the total amount
of child support awarded in the U.S. has historically been paid each year. The
compliance rate was not significantly effected by reforms.

While labor force participation by women has increased from 30 to 57% since
1950, participation by men has decreased from 82 to 74%.(30) Participation is still 23% higher for men than
for women. Traditionally, child support has not often been awarded when the
father is given custody. Increased participation by women in the work force as
well as new child support laws are leading to change. The fact that custodial
fathers received only about 44% of the amount awarded according to the Bureau of
the Census study (compared to nearly 66% received by mothers) is largely, but
not completely explained by the fact that a larger percentage of custodial
fathers had very new awards and payments were not yet due.

This leaves us with about 20% of the amount fathers have been ordered to pay
to custodial mothers unpaid each year. From that figure, we must deduct for
fathers who have died, those who are unable to work due to incapacity and
incarceration, and for orders that no longer require payment because the child
has died or has become emancipated, the very serious problem of missing
custodial parents and children,(31) and even for
changes in custodial arrangements. As Braver et al. point out,(32) the remainder, as well as some lateness in
payments (classified as partial payment) is primarily explained by un- and
under- employment. These figures give us an understanding that the failure of
the new child support system to reduce dependency on welfare was predictable.

Failure of federal child support reforms of the 1980s and 90s to reduce
welfare dependency is easily explained. At the beginning of this paper, we
mention the Oregon Supreme Court decision in Smith v. Smith (1981). The
issue in this case was whether it was appropriate to apply child support
formulae that were already being used in the welfare system to non-welfare
cases. It should not be difficult to understand that extending use of these
formulae to non-welfare cases would have no effect on welfare dependency.

Indiana State child support commissioner, Dr. David Garrod made a comparison
between awards made prior to 1990 according to established child support law and
application of a Williams type Income-Shares guideline used in his state.(33) He showed clearly that increases in award
amounts went to custodial mothers with higher income. In fact, the higher the
income of the custodial mother, the larger the increase. Mothers who then
re-married and shared the income of a new spouse as well, tend to be much better
off economically than they would have been if they had remained married to the
father of their children.

One might expect that greater potential lies in the 46% of all custodial
parents who have no support order. One can account for a significant number of
welfare dependents as not receiving child support because paternity has not been
established. Here again however, the reality is not as great as the expectation.

All the reasons for adjusting the expectation given above would also apply to
this population. Some at least to a greater extent. Although we know of no study
to date clearly focusing on the economic characteristics of this population,
there is clear reason to believe that their average income is much lower and
that they have a much greater problem with un- and under- employment. In
addition, there are a large number of people who do not have child support
orders simply because they are not interested in becoming involved in government
programs and not in need of a court order for child support.

There should be some economic potential in establishing paternity and support
orders in welfare cases. This is not a new revelation either. All states had
paternity establishment programs prior to the reforms of the 80s and 90s. It may
seem ironic that the federal government had to be coaxed during this period to
re-focus its efforts from arbitrarily increasing child support awards in
non-welfare cases to paternity establishment. But states were already
experimenting with the idea of denying welfare benefits to women who did not
cooperate in paternity establishment and had been reasonably successful in a
program of locating so-called "absent fathers" in hospitals at
mother's side when children were born. In addition, a more reliable DNA test was
replacing a simple blood test, increasing accuracy of identification in
contested cases.

We can go back to the Smith case to point out that a serious problem did
exist. Why did Mrs. Smith feel there was reason to complain? There was a
discontinuity in the treatment of child support cases at the boundary between
welfare and non-welfare cases. The inequality of treatment on either side of the
boundary was so significant that Mrs. Smith, apparently not a wealthy woman,
proceeded through the judicial system to the State Supreme Court. Although we
are confident that the court was correct in its determination that the welfare
formula did not fit established non-welfare child support law, it doesn't
alleviate the practical problems that arise from such starkly unequal treatment
in similar circumstances.

Mrs. Smith was caught between the moment the federal government adopted
foreign methods for dealing with welfare cases and the moment the federal
government manipulated states into extending those methods to non-welfare cases.
In a political sense, she had been living in one country while on welfare and
suddenly moved to the United States when her income became high enough to leave
the welfare system. The two systems didn't match. What has happened since is
that 10s of millions of Americans whose children are not dependent upon the
welfare system have been transferred, sometimes kicking and screaming, into the
non-American system. To date, there has been no government funded effort to
adapt the new child support system to Constitutional requirements or those of
the federal law mandating the change.

What should be regarded as the greatest mistake in the reform movement, as
well as the greatest embarrassment to the United States is that the domestic
political discussion has consisted almost exclusively of propaganda demonizing
non-custodial parents. In the background, the American public has been aware of
"The New World Order" in relation to the fall of the Soviet Union, and
generally understand that new global trade agreements have been and are being
forged. But not a hint of information has been fed to the general public on
integration of or "cooperation" in an array of social programs or the
impact of global integration on our domestic judicial system. Had the government
made a greater effort at full disclosure, the American public would surely have
responded with pressure to adapt newly proposed systems to Constitutional
requirements.

The Milwaukee Journal Sentinel recently reported that an error of forty cents
was made in withholding one man's final child support payments. The man believed
he was finished with the child support enforcement agency and went on with his
life. He wasn't told that he owed back support until one day he was informed
that he faced contempt of court charges that could result in a 180 day jail
sentence. By that time the agency said he owed $173.53 including interest and
fees.(34)

The problems of the new system go well beyond inappropriate child support
awards. The Los Angeles Times recently reported that in the process
"designed to snag deadbeat dads and force them to pay up on their child
support", one county had assigned paternity incorrectly to hundreds of men
by default.(35) The bureaucratic idea of
"due process" is that if the proper paperwork isn't submitted on time,
the individual citizen they deem responsible for it faces the consequences.
Those consequences included trouble with relationships and marriages and
assignment of a child support obligation. The agency then refused to correct the
problem and it has been necessary for innocent victims to go through the process
of battling the bureaucracy in court.

It is time to talk about Americanizing our new child support decision system.
Several states are actually using the Soviet Communist system promoted by Irwin
Garfinkel, while all other states have been pushed in that direction by
promotion of Williams' odd variation of the Income Shares model. Beyond the
formulae for calculation of child support awards, there is the array of
unrelated punishments such as the loss of drivers and professional licenses and
the return of the United States to the ante-bellum standards of involuntary
servitude and debtors prisons that had not been abandoned in the Soviet Union.

The fact is that the bureaucratic "efficiency" promoted by
international integration isn't compatible with fundamental rights in the United
States. "Efficiency" in this sense has nothing to do with doing the
job correctly. It has had to do with a broadside attack on a large group of
citizens, an over-controlling government, a federal government becoming too
involved in the daily lives of individuals, and spending more money doing it. In
the broad view, Americans who have become familiar with the system look at the
billions of additional dollars spent on a system that provides no net benefit, a
federally developed $3 billion dollar computer tracking system that doesn't
improve payments but causes harm to innocent people, and they cannot equate the
reforms with efficiency.

In 1995, the cost of operating the child support enforcement program was
nearly 3 times the amount paid in reimbursement of welfare benefits.(36) The promotion of reform presented to the
American people consisted of telling them that poverty in the US was largely the
fault of "deadbeat dads" who had successfully transferred financial
responsibility for their children to the American taxpayer. The expensive new
child support enforcement system was called an "investment" aimed at
forcing these fathers to live up to their responsibilities to the relief of the
American taxpayer. Instead, it's added around $3 billion each year to their
burden. The failure of the program to produce promised results was so
predictable that one congressman said; "We're going to reform welfare in
order to save money. As far as I can tell, it's going to be very
expensive."

The most efficient thing to do is to eliminate the new system and focus on
doing what's right the first time around. What this requires is exactly what
Americans have always understood. Basic rights, including strong respect for due
process of law, careful scrutiny to see that people are not treated unjustly,
enforcing the necessary discipline against waste and error. The basic rules
which most Americans believe to be fundamental to our Constitutional system
should even protect groups of citizens who happen to find themselves at the
cross-roads of bureaucratic interests against the ill feelings and biases
created by intense propaganda campaigns.

The approach proposed in the sections above (based on Legal Construction) was
taken in the Project for the Improvement of Child Support Litigation Technology
(PICSLT) starting in 1989. A great deal was learned about tuning child support
formulae to the American system. Generally, child support committee members have
seen the application of mathematics to the child support question as something
magical and transforming, as though once a report is produced alleging
statistical support for one view, there is no longer any need for traditional
legal processes.

But there most certainly is a need. The only way to properly apply
mathematical decision models within the context of Constitutional justice is to
fully disclose the nature of the mathematics, the underlying reasoning, and the
assumptions in such a way as to make their review practical in comparison with
the circumstances of each case. The only acceptable way to reduce the number of
deviations from guideline amounts is to continue to improve the decision models
so that they do a better job. In addition, making it easier to identify
situations in which deviations are appropriate and developing simple ways to
calculate deviations would improve the overall efficiency of the process.

As it turns out, developing a model within the discipline the United States
Constitution provides an excellent body of theory useful to other countries in
the world. Whereas other countries have developed models specifically fitting
their economic / political structure and tuned to their current set of welfare
state benefits, the Constitution simply tells us that we are required to
"do the right thing" in each case. We are therefore under pressure to
dig deeply into the question to determine what the right thing is in the
greatest possible array of circumstances. This means developing the most general
and complete theory.

In recent study within PICSLT, it has been found that models fitting a wide
range of political / economic systems can be explained by the theory developed
within the project. Beginning with the most complete model, we simply eliminate
variables that do not apply in more controlled economies, and account for any
array of welfare state benefits by methods which are already an integral part of
the theory. This confirms the view given in the previous paragraph.

The scientific approach to developing child support science and technology
should be understood as a parallel to the established judicial process, what we
call "due process". Mathematical models are a precise, formal way of
expressing concepts and relationships. "Precise" is not synonymous
with "just" or "appropriate". To produce valid results
("just and appropriate" in the words of the Family Support Act)
successful testing is required. In order to test, some set of independent
criteria for deciding what "just and appropriate" is must be developed
(i.e. a child support policy to which a presumptively correct
"guideline" must conform).

It was disconcerting to see how quickly very simple child support formulae
were accepted in the states. Even more so because their simplicity was given as
one of their major selling points. Federal law (and the Constitution) require a
just and appropriate award in each and every case. The goal is to construct
guidelines that are sufficient to produce just and appropriate awards in every
circumstance to which they are applied. It is required that judges can identify
inappropriate and unjust results and that attorneys and parents can argue for
deviation when a formula fails.

No one should underestimate the task of adapting properly to the new
requirements. The initial thrust, following OCSE / Williams recommendations for
development of guidelines was a false start. In order to do the job properly,
and in the quickest and most efficient manner, it will be necessary for
legislatures and the courts to give the highest priority to the basic
requirements of the Family Support Act ("just and appropriate award in each
case") and the highest respect for Constitutional rights.

0 Williams, R. 1987. Development of Guidelines for
Child Support Orders: Advisory Panel Recommendations and Final Report, II-68 to
II-75. Washington, DC: U.S. Department of Health and Human Services, Office of
Child Support Enforcement

0New Equations for Calculating Child Support
and Spousal Maintenance With Discussion on Child Support Guidelines, Final
Report of the Project for Improvement of Child Support Litigation Technology,
1994.

0 Betson, David M. 1990. Alternative Estimates
of the Cost of Children from the 1980-86 Consumer Expenditure Survey, U.S.
Department of Health and Human Services, Office of the Assistant Secretary for
Planning and Evaluation.

0 Final Report. Evaluation of Child Support
Guidelines. Volume II: Findings of State Guideline Reviews, State Guideline
Studies, and Unstructured Interviews. U.S. Department of health and Human
Services, Administration for Children and Families, Office of Child Support
Enforcement. March, 1996.

0 Gay, Roger F., Rational Basis is the Key Focus
in Emerging 'Third Generation' Child Support Technology, in Proceedings of
the Seventh Annual Conference of the Children's Rights Council, Holiday Inn,
Bethesda, MD, April 28 - May 2, 1993. (This paper was provided to the Oklahoma
House and Senate Judiciary Review Committee for child support guidelines
prepared by Dr. Palumbo and provided last November to each member.)

0 During 1992 presidential debates, president George
Bush said that he thought maybe the "deadbeat dad thing" was the
problem Americans were most concerned about. To that, candidate Bill Clinton
made the famous remark, "It's the economy, stupid." Politicians can
apparently have short memories. President Bill Clinton continued to rely heavily
on "deadbeat dad thing" through his 1996 re-election campaign.

0 "Parallel Unilateral Policy Declarations -
Bilateral Arrangements as an Alternative to Conventions on the Enforcement of
Support (Maintenance) Obligations", Hague Conference on Private
International Law (13-17 November 1995), Working Document No. 2 submitted by the
Delegation of the United States, Special Commission on maintenance obligations,
13 November 1995.

0 The Uniform Reciprocal Enforcement of Support Act
(URESA) was first developed in 1950 by the National Conference of Commissioners
on Uniform State Laws (NCCUSL), and was revised significantly in 1968 (RURESA).
In August, 1992, an almost wholly new Act was completed to replace URESA/RURESA
and was renamed the Uniform Interstate Family Support Act (UIFSA). UIFSA:
"a foreign jurisdiction that has established procedures for the issuance
and enforcement of support orders which are substantially similar to the
procedures under this act." By this simple addition to the definition, the
reach of the enforcement process of the states was greatly expanded.

0 Example; In 1994, a paragraph was added to Swedish
law stating that recognition would be given to orders written in Australia,
America's United States including Guam, The Virgin Islands, Puerto Rico and
Samoa, with the exception of Alabama, District of Columbia, Mississippi and
Nevada. (1976:108 with changes 1977:743 and 1994:1327)

0 Report made by the U.S. Delegation via the U.S.
Embassy at the Hague to the Department of State in December 1995, Subject:
International Enforcement of Family / Child Support: Meeting of Hague Conference
Special Commission [November 13-17, 1995] to Examine the Functioning of Various
International Conventions Concerned with Enforcement and Recognition. (Within
the context of the Hague Conference on Private International Law.)

0 As discussed below, the compliance rate in the US
is approx. 80% of what is ordered is paid. Generally, investigations by PICSLT
indicate that overall compliance with child support orders is well correlated to
the economy. It seems apparent that this relatively high compliance rate in the
US is a result of the generally high level of wealth enjoyed by its citizens.
Non-compliance is well correlated with inability to pay.

0 Although according to the data used in that
report, child support had been awarded for only 56% of all separated custodial
parents. Part of the lack of support orders however, can be explained by the
death of an ex-spouse, agreement not requiring a court order, and other reasons.
A significant part however is simply because paternity has not been
established.

0 Braver, Sanford, Pamela J. Fitzpatrick, and R.
Curtis Bay, 1988, Non-Custodial Parent's Report of Child Support
Payments, presented at the Symposium "Adaptation of the Non-Custodial
Parent: Patterns Over Time" at the American Psychological Association
Convention, Atlanta, GA, August, 1988. Compared Bureau of Census custodial
parents reports (approx. 70% received) with father survey (approx. 90% paid).
Part of the payments goes directly to the welfare system as reimbursement rather
than directly to the custodial parent.

0 It is estimated that approximately 300,000 have
lost regular contact with their fathers due to visitation interference. It is
unfortunately too often the case that custodial mothers who move out of state do
so without making adequate arrangements for visitation, often do not notify the
non-custodial parent of the move even if required by law, and may leave
intermediate forwarding addresses and have unlisted phone numbers. National
parent finder centers typically deny services to non-custodial parents as a
matter of federal policy.

There are more pages containing things Roger.F.Gay@telia.se has
written that may interest you. There's a short article written for a general
audience describing the solution to the standard of living adjustment problem
at: http://www.buyer-link.com/~utopia/roger.html